For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Fair Labor Standards Act Wage Claims

Minimum Wage Requirements

FLSA Wage Claims You may be wondering if your employer is paying you the appropriate minimum wage. The Fair Labor Standards Act (FLSA) requires employers of covered employees who are not considered “exempt” to pay these employees a minimum wage of $7.25 per hour. Keep in mind, this is the Federal minimum wage and various states may have their own wage and hour laws. For instance, New Jersey’s minimum wage rate for 2019 is $8.85 per hour. The FLSA also lays out which category employees of employees are exempt from minimum wage requirements and/or overtime pay requirements.

Minimum wage for those under 20 years old

Minimum wage for people under 20 years old, the law permits employers to pay these employees a minimum wage of $4.25 an hour for the first 90 calendar days of employment. Employers are not allowed, however, to replace these younger employees every 90 days to maintain this youth rate.

Minimum wage for tipped employees

The FLSA also permits employers to pay what is called a “piece rate basis.” This typically occurs with tipped employees such as bartenders and servers (i.e. those who customarily receive more than $30 a month in tips). The employer may consider the tips part of the wages but must pay these employees at least $2.13 per hour if the employer claims a tip credit. While there are many other requirements, one additional one is that the employees must receive at least the equivalent of the minimum hourly wage rate ($7.25) and overtime for hours worked in excess of 40 hours per week.

Minimum wage for student employees

On certain occasions the FLSA permits payment of wages below the minimum wage under certificates issued by the Department of Labor. These include:

  • Student learners (vocational education students); and
  • Full time students in retail or service establishments, agriculture, or institutions of higher education
Waiting Time

Whether waiting time is hours worked under FLSA depends upon the circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait." See U.S. Department of Labor, Wage and Hour Division, Fact Sheet #22.

On-Call Time

The United States Supreme Court has established that “no principle of law . . . precludes waiting time from also being working time,” and that an employee who is “engaged to wait” must be compensated, even though an employee “wait[ing] to be engaged” need not. Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944). Whether waiting time is worked under the [FLSA] depends upon the particular circumstances,” such as the “nature of the service, and its relation to the waiting time.” 29 C.F.R. § 785.14 (citing Skidmore, 323 U.S. at 137). “[T]ime spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits. . . constitutes compensable hours of work.” 29 C.F.R. § 785.16(a). Courts have consistently held that “on-call” time can constitute work and is compensable under the FLSA where an employer restricts an employee’s ability to use time freely for the employee’s own benefit. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).

Off-The-Clock Claims

Employees must be paid for all time worked even if they are willing to work off-the-clock, meaning without compensation. “[A]n employee must be compensated for time she works outside of her scheduled shift, even if the employer did not ask that the employee work during that time, so long as the employer "knows or has reason to believe that [the employee] is continuing to work" and that work was "suffered or permitted" by the employer. Kosakow, 274 F.3d at 718 (citing 29 C.F.R. § 785.11); see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008) ("An employer who has knowledge that an employee is working, and who does not desire the work be done, has a duty to make every effort to prevent its performance. This duty arises even where the employer has not requested the overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours.").

Overtime Laws

The FLSA does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, for individuals over 16 years old. Similarly, the FLSA does not limit the number of hours of overtime an employer may schedule, or an employee may work. However, the FLSA does require employers to pay covered/non-exempt employees not less than 1 ½ times their regular rate of pay (time and a half) for all hours worked in excess of 40 in a workweek. Employees who are exempt (ineligible) from receiving overtime primarily perform work duties which are classified as "executive," "professional," or "administrative. See FLSA Coverage.

If you believe your employer is not paying you a legal rate of pay for all work time earned, do not hesitate to contact the attorneys at Mashel Law, LLC. Mashel Law, located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees.

Client Reviews
★★★★★
This law firm is amazing, great staff, would recommend this firm to friends and family. Thanks you for all your hard work. M.R.
★★★★★
Staff and lawyers at Mashel Law did an outstanding job in helping with legal issues. They are professional, knowledgeable and well versed in the employment laws. Extremely satisfied and highly recommend the firm. Thank you. M.T.
★★★★★
From start to finish this firm was amazing. During a real difficult time in my life they made my case feel like it was a top priority. I can't thank them all enough. Great job! I would highly recommend this firm. C.B.
★★★★★
No person ever wants to use a Labor and Employment Attorney because that indicates that someone has been through a bad experience. From my first contact with them up until our final meeting I was pleased with their professionalism, knowledge, kindness, and customer service. Their attorneys possess integrity and realism. They will fight for you if you have a case. I'm glad I came to Mashel law. While I hope anyone reading this doesn't need an attorney in this area, if you do I highly recommend them. V.S.
★★★★★
After an offer to settle for a very small amount, I went to Mashel Law Firm. Mr. Mashel and Peter earned me eleven times more than previous offer. Only Mashel law firm can teach your employer the lesson. You should get benefit of their expertise. R.P.